MISA-Zimbabwe Monthly Alerts Digest- March 2009

newspaper_vendor_ii.jpg
1. In this issue: The need for an explicit constitutional guarantee on press freedom and access to information- A necessity

MISA-Zimbabwe Professional Legal Intern

A free press plays a key role in sustaining and monitorin

The Zimbabwean constitution and press freedom

The relevant provision in the Zimbabwean Constitution for the purpose of this discussion is section 20 (1) that reads;

No
person shall be hindered in the enjoyment of his freedom of expression,
that is to say, freedom to hold opinions and to receive and impart
ideas and information without interference, and freedom from
interference with his correspondence.

Zimbabwe's
Constitution guarantees freedom of expression but falls short of giving
an explicit guarantee for freedom of press and access to information.
It has no constitutional guarantee that overtly provides for and
protects media freedom and access to information.

Freedom
of the press and access to information is left to be read into the
broader interpretation of section 20(1) and the absence of such has
serious cross-cutting effects on the manner in which the right to
freedom of expression is technically construed or interpreted by the
judiciary.

In a situation where one approaches the
court citing or challenging a clear violation of their right to press
freedom, the threat presented is that the courts are vested with the
discretion to either stretch the meaning of section 20, to include the
right or limit it so that precedence is given to that which is
expressly stated, to the exclusion of that which may be logically
implied.

While the idea of limiting the scope of
section 20(1) might be perceived as being ill-conceived because of its
overly rigid approach, it does not make it any less hazardous or lawful
since at the end of the day it is a question of the liberal or
conservative inclinations of the judge. This highlights the need to
have a constitution that properly or adequately defines the parameters
to which the right to freedom of expression extends and within which
bounds it may not be infringed; further amplifying the reasoning that
since such rights give effect and meaning to the right to freedom of
expression, they should be prescribed by the law through explicit
constitutional provisions.

Of importance is the
fact that courts will not always rule in favour of upholding media
freedom as a necessary extension of the right to freedom of expression.
The case of the Associated Newspapers of Zimbabwe (ANZ), publishers of
The Daily News and Daily News on Sunday is ample testimony to this
fact. The case largely revolved around the constitutionality of the
compulsory registration with the Media and Information Commission (now
the Zimbabwe Media Commission). The decision arrived at in this matter
by Chief Justice Godfrey Chidyausiku, was without doubt one of the most
fatal blows to freedom of expression in Zimbabwe under the guise of the
Access to Information and Protection of Privacy Act (AIPPA). He
dismissed the case on the basis of the dirty hands' doctrine, implying
that the ANZ application could only be entertained upon full compliance
of the law; ironically it was the very law that was the subject of
contest. The courts failed to appreciate the need to interpret the
concept of freedom of expression in a liberal and purposive manner so
as to give effect to the right.

The right to freedom
of expression as enshrined in the constitution is seemingly abridged by
the provisions in section 20(2). This section stipulates the enjoyment
of the right to freedom of expression may be restricted under any law
that makes provision for issues relating to issues of public safety,
public health, or issues of national interests, provided such
restrictions are reasonably necessary in a democratic society.

These
limitations on freedom of expression permitted under the Zimbabwean
Constitution are very widely drawn, considerably more widely than those
permitted in many other countries’ constitutions. Moreover, the
International Covenant on Civil and Political Rights, to which Zimbabwe
is a state party, states that;

19(3) the exercise of the
rights [to freedom of expression and information] … may … be
subject to certain restrictions, but these shall only be such as are
provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or public order or of public health or morals.

The
Constitution of Zimbabwe therefore permits much wider limitations on
freedom of expression than are permitted under international law.

The case of Mozambique
In
contrast to the Constitution of Zimbabwe, Mozambique's constitution
expressly provides for freedom of the press as a fundamental freedom
distinct from freedom of expression generally.

Article 74 of the constitution states that;
1 All citizens shall have the right to freedom of expression and to freedom of the press as well as the right to information.
2.
Freedom of expression, which includes the right to disseminate one’s
opinion by all legal means, and the right to information, shall not be
limited by censorship.
3. Freedom of the press shall include in
particular the freedom of journalistic expression and creativity,
access to sources of information, protection of professional
independence and confidentiality, and the right to publish newspapers
and other publications.
4. The exercise of the rights and freedoms
referred to in this article shall be regulated by law based on the
necessary respect for the Constitution, for the dignity of the human
person, and for the mandates of foreign policy and national defence.

Mozambique's
constitution guarantees press freedom contrary to the Zimbabwean
context in Mozambique there are rarely any vicious attacks on press
freedom. But this is not to say that the country has absolute political
tolerance of press freedom as is testified by the murder of journalist,
Carlos Cardoso in 2000, who was known for his open criticism of
political leaders and aggressive editorial style.

Even
though there is a constitutional guarantee of press freedom, the 1991
Press Law contains statutes that permit press freedom to be abridged in
order to respect the Constitution, human dignity, and imperatives of
foreign policy and national defence. The Press law also holds that in
case of defamation against the president, truth is not a defence. The
vagueness of these provisions allow officials to prosecute journalists.
This indicates that it is inadequate to merely cite a right without a
complementary framework that allows the attainment and exercise of such
a right.

In the absence of these necessary conditions,
there comes into play a host of crucial exceptions to, and restrictive
definitions of the scope of operation of a right and the need to have
particular rights may be totally undermined. It is totally illogical to
say that the constitution guarantees the right to freedom of expression
and press on one hand while another piece of clandestine legislation
(such as the press law in this instance) takes away the same right.

Other
constitutions like those of Namibia and South Africa, expressly state
that freedom of expression includes freedom of the press and other
media, Zimbabwe should rightfully follow the same regional path.

The
State should ensure the protection of its people and govern in a manner
that is in sync with their wishes by having full regard of their
fundamental rights. By voting people into power, people in essence give
up their liberty in return for protection.

However, the
underlying idea is that the citizenry should always enjoy their basic
fundamental liberties; otherwise it would be illogical to assume that
man would give up his liberty in return for enslavement.

2. Summary of media alerts: March 2009

Victim/
concerned party

Violation
/event/ issue

Date

Status of
matter

 

Zimbabwe Community Radio

A new radio station, Zimbabwe Community Radio, is broadcasting
from the United Arab Emirates in a bid to create awareness on the value of
community radio for development, freedom of speech and promotion of local
culture especially among marginalised minorities in the country. Zimbabwe
Community Radio's daily broadcasts are aired between 10PM-11PM on shortwave on
5995 KHz.

1 March
2009

Jestina Mukoko, director of the
Zimbabwe Peace Project (ZPP) and former news anchor with the Zimbabwe
Broadcasting Corporation (ZBC)

Mukoko who had been languishing
in custody since December 2008 on allegations of banditry was finally granted
bail by Harare Provincial Magistrate Mishrod Guvamombe.

Her release followed an urgent
bail application by her lawyer Harrison Nkomo which was not opposed by the state
represented by Teddy Kamuriwo.

Bail was set at
US$600.

2 March
2009

Magistrate Guvamombe ordered
Mukoko to surrender title deeds for property worth

US$20 000 as surety. She is also
expected to report to Norton Police Station twice a week on Mondays and Fridays
pending the finalisation of the case.

Her next appearance in court was
on 4 March 2009.

Jestina
Mukoko

Mukoko appeared before Harare
Magistrate Gloria Takundwa. The case was postponed to 20 March 2009 after the
State applied for the postponement.

4 March
2009

Her lawyer Alec Muchadehama was
agreeable to the postponement but stated that Mukoko who has not been charged
should be placed on formal remand at the next court sitting. Muchadehama also
said a trial date should also be set in the matter.

Freelance photojournalist
Anderson Shadreck Manyere

Manyere appeared before Harare
Magistrate Archie Wochiunga on challenging his placement on further remand on
alleged acts of banditry.

Manyere is being charged under
section 23 (1), (2) of the Criminal Law (Codification and Reform) Act which
criminalises acts of insurgence, banditry, sabotage or terrorism or
alternatively Section 143 of the same Act which relates to aggravating
circumstances in relation to malicious damage to
property.

6 March
2009

Magistrate Wochiunga deferred
ruling to 12 March 2009.
Manyere who was denied bail by the High Court filed an application
to the Supreme Court challenging this decision.

The application is still
pending.

Anderson Shadreck
Manyere

Manyere's application for refusal
of further remand was on 9 March 2009 dismissed by Magistrate Archie Wochiunga
who said the state should be given time to conclude its investigations.

9 March
2009

The matter was remanded to 23
March 2009 while Manyere remains in custody.

His lawyer Alec Muchadehama said
if the State failed to file the necessary papers by 23 March 2009 the defence
would make another application for refusal of further remand. Manyere has
another pending application before the Supreme Court challenging the High
Court's decision to refuse him bail.

ZimInd Publishers

ZimInd
Publishers announces plans to launch a daily
newspaper, NewsDay. ZimInd Publishers chairman Trevor Ncube
said NewsDay which would hit the
streets soon, and would play a vital role in rebuilding the nation as a forum
and market placefor ideas and debates to create a prosperous economy as the
nation thrives to revive the education, health and social sectors. He said the
project was expected to create 300 jobs in the publishing
sector.

14 March
2009

Editor of The Chronicle Brezhnev Malaba and reporter
Nduduzo Tshuma

Malaba and Tshuma are arrested
and made to sign a warned and cautioned statement by police in Bulawayo
following publication of a story by the state-controlled regional daily
newspaper alleging police involvement in a Grain Marketing Board maize
scandal.

17 March
2009

Tshuma told MISA-Zimbabwe on 26
March 2009 that they had not heard from the police since they had signed the
statement but hinted on the reluctance of the state to prosecute as there is no
complainant in the matter.

Postal and Telecommunications
Regulatory Authority of Zimbabwe (POTRAZ)

POTRAZ reduces all telephone
tariffs by ranges of between 25- 40 percent pending the completion of a detailed
tariff review exercise. The review of the tariffs applies to all categories and
chargeable services and is intended to balance the affordability of services by
consumers and the viability of operators.

18 March
2009

Thelargest cellular network
provider, Econet Wireless, in
February 2009 reduced tariffs for its intra-network calls for Buddie package users from US0, 29cents to
US0, 26cents per minute. By that time off peak calls had already been reduced
from US0, 26cents to US0, 20 cents per minute under its Nite Chat promotion.

Anderson Shadreck Manyere

Harare High Court Judge Justice
Yunus Omerjee grants Manyere leave to appeal to the Supreme Court against his
continued detention on alleged acts of banditry. A bail application made to the
High court on 19 February 2009 was thrown out by Justice
Omerjee.

19 March
2009

Judge Justice Omerjee noted that
the High Court had misdirected itself when it denied Manyere and two other
alleged MDC activists bail last month.

Jestina
Mukoko

Mukoko was remanded to 9 April
2009 to allow the state to prepare its indictment papers and formerly charge her
at the next remand date.

Defence lawyer Alec Muchadehama
said a trial date should also be set failure to which the state should withdraw
the matter and the court refuse having her placed on further remand. Muchadehama
said the requirement for Mukoko to report to the police twice a week was
unnecessary and should be relaxed. Prosecutor Tawanda Zvekare, however, argued
that Mukoko is properly on remand as she is on bail and dismissed the defence
submission for the relaxation of her bail
conditions.

20 March
2009

Harare magistrate Memory Chigwaza
said the court had taken note of the defence's concerns and remanded the accused
to 9 April 2009.

Anderson Shadreck Manyere

A ruling on an application for
refusal of further remand of Manyere is deferred to 24 March 2009 by Harare
Magistrate Gloria Takundwa.

23 March
2009

Manyere made a bail
application to the High Court on 19 February 2009 which was dismissed by Justice
Omerjee. He has however been granted leave to apply to the Supreme Court but his
case is still to be heard.

Anderson Shadreck
Manyere

Harare Magistrate, Memory
Chigwaza dismisses an application for refusal of further remand by Manyere. In
her ruling the Magistrate upheld the application by the State to remand the
accused to 30 April 2009 on the grounds that the state needed time to prepare
indictment papers for the accused. She, however, cited the need to have the
accused indicted by that date.

24 March
2009

The dismissal of the application
effectively means that Manyere will remain in remand prison, pending the hearing
of a Supreme Court application in which he is challenging his continued
detention.

MISA

Post published in: News

Leave a Reply

Your email address will not be published. Required fields are marked *